Vivekanand Pratisthan Parishad vs Delhi Development Authority
2000 Latest Caselaw 1191 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the demand of ground rent from the year 1989 as well as receipt of the draft lease deed only on 10-10-1996, the petitioner has filed the present writ petition under Article 226 of the Constitution of India. It has been contended by Mr. Khadari, learned counsel for the petitioner that initially five acres of land belonging to the petitioner-Society was acquired by the Union of India in 1964, out of which two acres of land was allotted by the respondent /DDA to the petitioner society for a total sale consideration of Rs. 1,97,000/- for the purposes of establishment and construction of Vivekanand Hospital and Yoga Centre. The said money was deposited by the petitioner on 9-5-1985, however, possession of the land could not be given by the respondent since there was unauthorised and illegal occupation by the encroachers over the said land. It seems that the formal possession of land measuring 8000 sq. mtrs. was handed over to the petitioner, excluding some land which was unauthorisedly encroached, with the assurance that the regular possession of the land will be handed over to the petitioner after removal of the unauthorised encroachment. A letter was written by the petitioner on 29-5-1990 that regular possession of the land in question be handed over to the petitioner society so as to enable the petitioner society to start hospital and other related activities. Similar requests were made by the petitioner through various letters which have been filed along with the paper-book.

2. Vide its letter dated 19-9-1990 which is at page 32 of the paper-book, respondent/ DDA stated as follows :

"With reference to your letter dt. 27-7-1990 on the subject noted above, I am to inform you that in one case the stay granted by the Court has been dismissed and in another case action is being taken to get the stay vacated so that the encroachment could be removed and possession be handed over to you."

3. At page 49 of the paper-book is the no objection certificate in respect of the land of the petitioner from DDA, the same is dated 26-9-1995. At page 64 of the paper-book is the proposed lease-deed which has been sent to the petitioner on 10-10-1996. On the basis of these documents, counsel for the petitioner has contended that when the actual physical possession of the land was given by the DDA on 21-8-1995, charging of ground rent from 1989 is totally illegal and arbitrary.

4. On the other hand, Ms. Ansuya Salwan, learned counsel for the respondent/DDA has contended that as the possession of the land was with the petitioner right from the beginning , the petitioner cannot take this plea and petitioner if, liable to pay ground rent from the year 1989 as per Clause (4) of the proposed lease-deed. It has been contended that out of five acres of land which was under the possession of the petitioner society and which was acquired by the Union of India, the entire possession was taken over on 8-7-1985 and out of said five acres two acres were allotted to the petitioner society and a demand-cum-allotment letter was issued on 12-3-1985.

5. I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. In paragraph 6 of the counter affidavit filed by the respondent DDA it has been admitted that on account of stay order granted by the Court possession could not have been delivered to the petitioner as the orders were vacated by the High court on 21-4-1991. It is contended by counsel for the petitioner that the stay order was vacated on 21-4-1993. Copy of the judgment has been filed by the petitioner which is at page 35 of the paper-book. In paragraph 11 of the counter affidavit filed by the DDA, the stand of the DDA is that on 9-6-1994 petitioner met Director (Land Management) DDA and requested the Director to remove the encroachers at the earliest and the Commissioner (LM) gave directions to get the encroachments removed immediately. The whole controversy which has been raised by the DDA is demolished by its own counter affidavit. Paragraph 12 and 13 of the counter affidavit reads as under :--

"In reply to Paras 12 & 13 of the petition it is submitted that the encroachments were removed and the possession of the plot was handed over to the petitioner on 21 -8-1995. That even no Objection Certificate for sanctioning of the building plan was issued on 26-9-1995."

6. When possession of the land is handed over, the land cannot be put to any use in the absence of total land not being free from encroachment as no building plan can be sanctioned, no activity could be started. Here is a case where respondent itself has admitted that on account of litigation and stay orders passed by the Court, the total land could not be put at the disposal of the petitioner. The handing over of the actual physical possession on 21-8-1995 enures to the benefit of the petitioner. The No Objection Certificate granted by respondent/DDA on 26-9-1995 also supports the case of the petitioner. If respondent could have given a No Objection Certificate in 1989, perhaps they could have justified their claim for the ground rent from 1989. Having not done so and having taken the stand in the counter affidavit that actual physical possession of the land was handed over on 21-8-1995 and No objection Certificate was issued only on 26-9-1995, how can DDA charge ground rent from 1989 merely because a part of the land was in the possession of the petitioner. Even the lease-deed was sent by the respondent after issuing No Objection Certificate granting actual physical possession to the petitioner on 10-10-1996. Therefore, I do not find any merit in the arguments of the counsel for the respondent that the petitioner is liable to pay ground rent from 1989.

7. When the respondent itself has written to the petitioner on 19-9-1990 that till date they have not handed over the possession, insertion of Clause (4) in the lease-deed is highly improper and illegal thereby stating that the petitioner is entitled for payment of ground rent from 27-2-1989. One cannot lose sight of the fact that for starting any activities or construction over the land in question, no objection from DDA was sine qua non. DDA having given the same in the year 1995, cannot turn now and say that the petitioner is liable to pay ground rent from 1989. The building plans can be sanctioned only after no objection is granted and lease-deed is executed. The building plans are valid for a specific period and if construction is not raised, then the building plans have to be revalidated. In this case, if the date as shown in Clause (4) of the draft lease-deed is taken to be correct, then a great anomaly will be created vis-a-vis the right of the petitioner. The ground rent will be leviable from 1989, although no objection certificate has been granted by the DDA only on 26-9-1995 and lease-deed has not been executed and only a copy of the draft lease-deed was sent to the petitioner on 10-10-1996. The respondent/DDA is directed to execute fresh lease-deed taking the date from the date of actual handing over of the possession on 21-8-1995. After the lease-deed is executed the building plan submitted by the petitioner with the respondent will be sanctioned by the competent authority in accordance with law within a period of six months. 8. Petition stands disposed of.